IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO: 70/96
COR: THE HON. MR. JUSTICE FORTE, P. THE HON. MR. JUSTICE HARRISON, J.A. THE HON. MR. JUSTICE LANGl�IN, J.A.
BETWEEN THE GLEANER COMPANY LIMITED DEFENDANTS/ DUDLEY STOKES APPELLANTS
AND ERIC ANTHONY ABRAHAMS PLAINTIFF/ RESPONDENT
Emil George, Q.C., with GarthMcBean & Yoland Whitely Instructed by Richard Ashenheim of Dunn, Cox, Orrett & Ash,imheim for Appellants
Winston Spaulding, Q.C., Gayle Nelson, Mrs. Nancy Tulloch .. Qarby, Mrs., Crislyn Beecher-Bravo & Marina Sakhno instructed by Gayle Nelson & Co for Respondent
October 25, 26, 27, 28, 29 November 1, 2, 3,4, 5, '1999 January 31, February 1, 2, & July 31, 2000
FORTE, P:
The respondent is a gentleman of solid background and a son of a well
respected family in Jamaica. As a result, he was the beneficiary of ;3 good education, received at two of the leading high schools in Jamaica from where h1:i moved on to the
University College of the West Indies. Taking advantage of thesE: opportunities he excelled not only in academics, but also in sports and in other extra curricular activities, 2 particularly that of debating in which he represented the Universi•:y in international competitions. His qualifications were good enough to earn him the coveted Rhodes
Scholarship, which allowed him the honour of attending the presti�1ious University of
Oxford in England. At Oxford, he became President of the West Indies Society and
President of the Oxford Union a debating Society. The respondent, however soon fell into problems at Oxford which led to his being sent down. In his evidence he gives an explanation, which suggests that the reason for this, was the stand he, took in relation to the visit of a South African Ambassador to the University during th,� times when the
Apartheid regime existed in South Africa. He had planned a mass ve demonstration against the Ambassador, which turned sour as the Ambassador "got a little roughed up."
The demonstration it seemed, also coincided with the arrest of Nel:;.on Mandela. He became a television reporter for the British Broadcasting Corporati<:in rising from the lowest rank as a production assistant to become a director and then a television reporter. ln 1965/66 he resigned to return to his native land as Assistant to the Director of Tourism. Two years later, at the age of 28, he was appointed Chai •man, and Director of Tourism. In that job, he studied "a lot about tourism". He took the c,pportunity to learn and understand the foreign tour operators and travel agents and tc, develop contacts with them. He developed a lot of friends in the tourist industry, and 11is background at the University College of the West Indies and in England gave him access to a lot of persons in the industry who had been his fellow students in those clays. In 197 4, he resigned as Director of Tourism, and entered business as a tourism consultant. He did some valuable work including consultancies with the Organization of American States
(0.A.S.) the Government of El Salvador and EasternAirlines.
He unsuccessfully contested the national elections in Jam,iica in 1976 after which he was appointed a member of the Senate. Having served a year he went to 3
Barbados to head the O.A.S. Regional office, and while there throu�11 the OAS he did
consultancies with the Governments of Barbados, Grenada, St. Lucia, Haiti and Bolivia.
In 1980, he came home and contested the general electiom;, this time being
successful. Thereafter he was appointed Minister of Tourism. In t/·,e 1983 elections,
not contested by the opposition party he was returned unopposeid, and thereafter
continued as Minister of Tourism until 1984, when he resigned as Mini:;ter, but remained
in Parliament. During this time, the respondent testified, he had !he opportunity to
further increase contacts, "press contacts, trade contacts, public r,elations contacts,
government contacts both regional and international.'1
After his resignation, the respondent went back to his private consultancy
business, and made available to the Jamaica Hotel and Tourist Asi;ociation, and the
government of Jamaica, his advice and contacts. The respondent at this time, if he were
believed, had established himself as having vast experience in the tourism industry and
considerable knowledge in respect of the same, and also a lot of contai:ts both regionally
and internationally.
He was a person respected for his knowledge and experience, not only at home
. butJntl:!matiQnaJ!y 1lc1ving ctqne consult�mcifls.for varioyi; c:ountriEls,. J-le waF. at.this ti111e_
enjoying a good reputation, and success in his consultancy business, though, handicapped so far as international organizations were concerned, b)' his continuing as a Member of Parliament, as those organizations did not "favour" active politicians.
It was at this time that the Articles, the subject of the appeal, were published by the defendants. The respondent had had an introduction to the allegations to be made against him on the day before the first of these publications took plact:. On that day, he received a call from a Miss Lisa Marie Peterson, from the Associated Press in Stanford
Connecticut. She read to him what appears to have been an Articlewllich she proposed to publish. The respondent testified that the Articleshe read sounded 1:ixactly to the word 4
like the Article he was to see in the Star Newspaper the following d,iy. He got angry,
threatened to sue if the Article was published in that form and gave her three reasons
why the Article was not true. She agreed to amend the Article. The, following day, he
received a call from his Attorney who read the Article in the Star Newi;paper to him. As
a result he went to the Attorney's office and read the Article. He ded:led to rectify it, by
calling the second defendant/appellant and giving him the same ir1formation he had
given to Miss Peterson. When he got the second defendant/appellan: on the phone, he
told him of the content of the conversation with Miss Peterson and told him he would
write "a (clarification) denial, and that he would be obliged if he could carry it in the following day's Star". Mr. Stokes at that time had no knowledge he ::.aid, of the Article
that had been published in the Star. He wrote the denial and took it to the Gleaner
Company that same evening, but it was not published in the Star of the following day.
Instead, on the following morning, the same Article, with one pc:rt excluded, was published in the Daily Gleaner, without any of the denials contained in his "clarification" taken to the appellants' offices on the evening before. The responclent consequently called the second defendant/appellant, and complained "bitterly" about not publishing his correction in the Star. In answer, the second defendant/appellant s1:ated that he had been overruled and that he knew it was going to cause trouble. The article in the Star
Newspaper of the 1ih September, 1987 referred to above, and the sut>ject matter of the case is as hereunder:
It is headlined as follows:
"Author says his diary sparked kickba1:;ks investigation"
Then it reads:
"STAMFORD, Connecticut:
Author Robin Moore says his personal diary and files contributed to Federal authorities suspicions that New Y:lrk 5
business executives paid kickbacks to Jamaican officials for lucrative tourism promotion contracts.
'All l can say is l suspected the Minister of Tourism was exacting a toll,' the writer, Robin Moore of Westport, !old the Advocate of Stamford in a copyright story publis ·1ed Tuesday.
'Call it a bribe, call it anything you want,' said Moore, the author of 'The French Connection', a novel on c ·ug smuggling.
The. Advocate reported Sunday that Federal authoritie :i in Connecticut are investigating public relations ;:1nd advertising executives suspected of paying Jamai :;an officials one million dollars for contracts worth $40 million from 1981-1985.
The Advocate, quoting anonymous sources close to the probe has said five or six executives of the public relati :ms firm Ruder Finn and Rotman and the advertising 1' irm Young and Rubicam are the focus of the investigation.
Officials of both firms have denied any wrongdoing ,:ind said they are co-operating with investigators.
KEY FIGURE
Moore said Monday that his files helped lead Fed1 :iral agents to suspect that Anthony Abrahams, Jamaica's former Tourism Minister was being paid by Ameri ::an businessmen for the multi-million dollar tourism contract:,.
Sources close to the federal grand jury have f;aid Abrahams is a key figure in the investigation, the newspaper said, Abrahams, however, has not testi'ied before the grand jury empannelled in New Haven, The Advocate reported.
The newspaper said efforts to reach Abrahams and his successor, Hugh Hart, during the past two weeks w,3re unsuccessful, and Hart didn't return telephone calls to his office on Monday.
Moore 61, said the notes in his diary are impressiorn; of what was going on between Abrahams and the United States companies. The subjects also appeared in letters between him and friends in Jamaica.
' I have no definitive proof that this ever happened - it 11i1as just a suspicion of mine,' Moore said. 'People were 6
talking. There were certain things everybody know. Tr-3re was no secret about the situation with the (former) Minhter of Tourism'.
Moore said IRS agents seized his diary and 01,1er documents in June 1983, when he was being investigcited for his part in phony literary tax shelters. Moore is now awaiting sentencing on his 1986 conviction of evacling taxes.
Moore, who has lived in Jamaica periodically for the �,ast 27 years, said that in 1981, he volunteered his service::, to the Jamaican government to find advertising and public relations companies that would help the country's tourist trade.
I was sort of a self-appointed liasion, although I asked to help. I said, 'Let's try to do something about the im.:1ge here, which is very bad at the moment'. 'I did, indeed help introduce the advertising agency of Young and Rubicarri to Jamaica, but I certainly had nothing to do with :my kickbacks, if indeed they did happen.'
U.S. attorney Stanley Twardy Jr., has refused to confirn- or deny the existence of the kickbacks investigation."
Then on the 18th September, 1987 the Article was repeated in the o.iily Gleaner word for word except for the following paragraph:
"People were talking. There were certain things everybr>dy know. There was no secret about the situation with the (former) Minister of Tourism."
Of relevance also is an item entitled "Clarification" published in the Daily Gleaner of the
19th September, 1987 which reads as follows:
"Absolutely no reference was made or intended to be made, to the current Minister of Tourism in the headline: 'Robin Moore: I suspected Jamaica tourist Minister,' in the second paragraph of the Associated Press (AP) story, 'All t can say is I suspected the Minister of Tourism ·1vas exacting a toll, the writer Robin Moore of West Port told the Advocate of Stanford' ... which was published on page ;1 of yesterday's Gleaner September 18, 1987."
The appellants eventually published the respondent's rebuttal in the Sunday
Gleaner of 20th September, 1987 which reads as follows: 7
"Abrahams: Has never accepted 'kickback'
MR. ANTHONY ABRAHAMS, M.P. and former ., LP Minister of Tourism (1981-84) has issued a statement in response to an associated press (AP) story appearin1; in the Star last Thursday {17.9.87) and the Daily Glea11er last Friday (18.9.87) refuting the inferences made in the article. Mr. Abrahams stated that - at no time in his er,tire career, including the period 1981-84 when he was Mini::;ter of Tourism, has he ever accepted any 'kickback' 'toll' or bribe to award or influence the award of any contract.
That I need at all to make such a statement for the ·'irst time after 20 years in public life is due to reports in your paper over the past months about an officially unconfirmed U.S. inquiry into alleged 'kickbacks' to Government officials in Jamaica and culminating in a statement in your paper attributed to Mr. Robin Moore.
'Moore's statement,' Abrahams said 'was damaging in 'the extreme to my reputation in Jamaica and internationally and though couched as a 'suspicion' about which he had no 'evidence', is tantamount to a blatant lie.
'Accordingly, I have instructed attorneys in Jamaica ,:ind overseas to take legal action against Moore's libel. I 1:1lso take the opportunity of, for the record, stating that I h,:1ve not been approached by any agent or servant of the Un ·:ed States Government and asked my question, or invitee! to give evidence before any Grand Jury Inquiry by 1:,at Government.'
'I state further that a (sic) no time have I received ,:iny payment from any executive of Ruder Finn and Rotrr.an. Young and Rubican or any agent of theirs to at any t me do, or commit, any improper act of wrong doing.'
'I also wish to state that neither I, nor any company ow1·1ed by me, has, or ever has had any bank account in the Cayman Islands and that in fact, anyone knowing of ,my account of any bank in Cayman under suspicion ,,ind alleged to be mine can rely on any co-operation th :tt I could provide for any investigation in such account. I must repeat that I have no bank account in Cayman' ... ".
The respondent however filed a writ and Statement of Claim ir1 libel on the 24th
September, 1987 based on the articles published in the Star Newspaper on the 1th 8
September, 1987 and in the Daily Gleaner on the 181h Septenber, 1987, and incorporating the "Clarification" published in the Daily Gleaner on the 19th September,
1987. In his Statement of Claim the respondent alleged the following:
"7. The said words referred to in paragraphs 3, 4 and ::i in their natural and ordinary meaning meant or V1,,3re reasonably understood to mean that the Plaintiff 1·1ad committed criminal offences:
1. contrary to the Corruption Prevention Act, ancl;
2. contrary to Common Law,
and by so doing the Plaintiff was not a fit and proper person to hold public office.
8. By reason of the publication of the aforesaid words ·:he Plaintiff has been gravely injured in his character, cr,:idit and reputation and as a businessman, tourism ;:1nd marketing consultant and Member of Parliament, and has been brought to public scandal, odium and contempt."
The respondent also claimed exemplary damages relying on the following:
I. "The Plaintiff on September 17, 1987, after ·the publication of the libel complained of in paragmph 3, spoke to the Second Defendant, and at ·:he Second Defendant's request sent to ·:he Defendants a statement denying the allegation. The Defendants neglected and refused to publish the said statement in breach of the undertakino of the Second Defendant to do so in the �:.tar newspaper of September 18. 1987.
II. The Defendants published the libel complained of in paragraph 4 after the Second Defendant g,we the Plaintiff an undertaking that it would not be published in the Daily Gleaner.
Ill. The Court will be asked to infer that the Defendants published the said words complai1•1ed of in paragraphs 3, 4 and 5:
{a) With the knowledge that they were libel:>us and or with reckless disregard as to whe1 lier or not they were libelous;
(b) Having established that the prospect of material advantage to themselves by rea 1;on 9
of the publication outweighed the prospect of material loss."
The appellants entered an appearance on the 2nd October, '1987, but having
failed to file a defence within the required period, interlocutory judgr·1ent in default of
defence was entered against them on the 23rd October, 1987, the re:;.pondent thereby
earning the right to proceed to an assessment of damages. The appellants'
subsequent application to set aside this judgment was refused, but on appeal, this
courtset aside the default judgment and granted the appellants leavE! to file a defence
within 14 days.
A defence was thereafter filed pleading justification and q1.1alified privilege.
Subsequently, the respondent sought further and better particulars witl1 respect to both
those issues raised in defence. This summons was dismissed on the 13th October,
1992, but on appeal, this Courtconcludi ng that on the pleadings there was no defence,
in the exercise of its inherent jurisdiction, ordered the defence to tie struck out and
remitted the case to the Court below to be proceeded with as if there was no defence.
The case thereafter proceeded to an assessment of damages before 11,e learned judge .. a11cfajury where itwas adjudged: "that there be judgment for the Plaintiff against 1:he Defendants in the sum of $80,700,000 for Gern,-ral Damages and costs to be taxed if not agreed."
It should be noted that in answering the questions asked of thE!m after they had
returned from retiring, the jury made it clear that the damages of $80.7m were in relation to compensatory damages only and that they had awarded no damages in respectto exemplary damages which had been claimed in the Stateme,nt of Claim.
It is from this judgment that this appeal now comes before us. JO
Before going into the merits of the appeal it should be notei:I that before the commencement of the arguments, a document was filed, indicating th,:it the parties had consented as follows:
"Pursuant to Rule 19(4)(a) and (b) of the Court of Ap�19al rules, the partiesto this appeal namely: the Gleaner Co _td and Dr. Dudley Stokes First and Second named Defendants/Appellants respectfully and Eric Anth1:1ny Abrahams, Plaintiff/Respondent hereby consent to this Honourable Court having the jurisdiction, in lieu of ordering a new trial to substitute for the sum of $80,700,000 awarded by the jury on the 1 J'h July, 1996 in this action, such other sum, as appears to the Court to be appropriate whether greater or lesser. The consent of the parties herein is given without prejudice to the right of either party to further appeal to 1:he Privy Council against any sum which may be substituted by this Honourable Court."
In addition, and also by consent the respondent was allowed to file a respondent's notice, seeking a variation of the trial court's order so as to include an amount for exemplary damages. The grounds upon which this complaint is made will be considered later in this judgment.
I turn now to the grounds of appeal upon which the appellant:; contended that the damages awarded should be varied downwards.
The first four grounds of appeal are based on allegations that 111e learned judge wrongfully permitted evidence to be put before the judge which befme being allowed, had to be specially pleaded, and which were not so pleaded. The evid1mce complained of related to the following -
(a) evidence of pecuniary loss in the plaintiff's
business;
(b) evidence of injury to the plaintiff's health;
(c) evidence of the effect of the libel complained of en
the plaintiff's son; 1l
(d) evidence of aggravation through numerous artich�s
published in the defendants' newspaper
subsequent to the libel complained of.
In addition and in the alternative the appellants complain tha1 th8 l&arned trial judge misdirected the jury in relation to the evidence. I will treat with (a) to (d)
separately.
1. PecuniaryLoss
In cases of libel a plaintiff can recover pecuniary loss as genmal damages but can only do so in respect of specific pecuniary loss e.g. loss of a particular contract or loss of employment, if such loss is specially pleaded. In Evans v. Ha,,.ies [1856) 1 H &
N 251, in an action for slander of the plaintiff in his business of an inn keeper, the plaintiffrecovered for a general falling off of custom and in Harrison 11. Pearce [1859]
32 L.T. (O.S.) 298, in an action for libel upon the proprietress of a new:;paper, damages were awarded in respect of the resulting general decline in the newsp,:1per's circulation.
Thus, a plaintiffcan give evidence that the words complained of are likely to cause him pecuniary loss in support of.a claim for general damages (Ca/vet & Tc>micies [1963] 1
W.L.R. 1397) ....
Evidence of actual loss, whether it be general loss of business :>r profits, or loss of particularearnings, customers, clients or patients, can only be recei·,•ed in evidence if the details have been pleaded in the Statement of Claim. However, Hvidence may be given of specific losses, not with a view to recovering damages for su,::h specific losses as such, but in order to assist the court in assessing the general damc1ges.
What is the evidence complained of as being evidence of unpleaded special damages? It must be understood that in so far as pecuniary loss ii; concerned, the respondent gave evidence of the prospects he had of increasing his business when the 12 libel was published, and the effect it had on his business of a tourism consultant. In this context he testified as follows:
"I was really set to make some real good money for the first time in my life. Maybe in that 5 year 6 year peri,:id I could have earned $1 ½ m U.S. Miss Martinez ear-ied about U.S. $250.000.
I am just speaking generally what I thought I could earn what my prospects were. If last year working part-time I made US$100,000, this indicates something."
This certainly could not be understood by the jury to be evidence upor which they were being asked to award e.g. $US100,000 p.a. as damages. It was inc,3ed evidence as described by the witness i.e. a general assessment of the witnei;s' worth, in the discipline in which he earned his living - a matter which the jury could certainly take into account in assessing general damages.
Indeed, this was how the learned judge left that evidence to tie considered by the jury:
"I will move from that now, members of the jury, and I will look at damages to business. Now, this is a consequence of the attitude adopted to the Plaintiff by others. People didn't want to do business with him, he says, because they felt he was a thief, he was corrupt, couldn't trust him to deal with money business. Now, you must remember, members of the jury, that general loss of business, it is not s�1ecial damages. Remember I told you last week what special damages are; it is general damages resulting from the kind of injury the Plaintiff has sustained. You have to estimate the general damages which the law presumes without proof; that is general damages, as I said, like say damages thc1t the law presumes without proof. In other words, when you pl�ad general damages you don't have to set out an amount or set out to prove one dollar or two dollars, the law presume�; that without proof, but evidence of general loss of businei;s is given to help you to do so. You cannot make an award for general damages in respect of any loss of particular earning, particular customers, particular clients, partieular transactions. However, evidence of specific losse,s is admissible, not with a view to recovering damages for :;uch 13
specific losses as such, but in order to assist yc:,u in assessing the general damages.
So, as I tried to explain on Friday, if a mention is madu of a particular amount, you can't say we are going to fimi this amount because no special damages are claimed, but that may assist you when you come to deal with the general damages, general loss of business and so on, assist �1)u in making your award."
In my view the above is a correct statement of the law and adequate directions by the
learned judge asto how to treat with the evidence.
Cornplaint was. also made on the same ground in respect of evidence given by
Marcella Martinez, on the respondent's behalf and which is as follows:
" ... is a career that can earn easily US$200,000 per annum; it can be more, than US$200,000. As a new consultant not even Abrahams begin at the top but certainly with the potential to reach the top which could be ½ m U.S. dollars. I would grade plaintiff above avemge with high potential to reach the top."
After rehearsingthat evidencefor the benefit of the jury the learnedjud1�e directed them
how to treat with it in relation to damages when he said:
"Remember you can't look at half a million and say I must award this or two hundred and say I must do this, thi!i is just evidence to help you in assessing the general los!; of . pu�in8-s�,.. , .... ,. .. __ Remember I told you that there is no special claim for damages, no specific damages claimed, therefore you can't pick out a particular amount and say I must grant this, this is only to assist you as you seek to find the appropriate award in respect of the general loss in issue."
The jurywere therefore adequately assisted as to how to treat with the evidence relating to specific monetary figures named by the appellant and his witness as to his earning capacity, and directed specifically not to regard it as amount::, being claimed under the heading of special damages. The evidence which fell from the respondent in this regard was given in the context of demonstrating to the Court, the adverse effect that the publication of the libel had on his business resulting in pecuniary losses which 14
had him once again dependent upon his father and preventing him 1'rom meeting the
expenses of his children which he correctly felt was his responsibility.
The appellant however also contended that there was no evidence of the
success or failure of the respondent's business as a consultant bE1tween 1984 and
1987, this being the period between the time when he returned tc the consultancy
business and the date of the publication of the libellous article. Nor tbe appellants say,
was there any evidence that his business failed to take off because of the libel. They
contended that it did not follow that because he was alleged to have bnen suspected of
taking "kickbacks" as a Tourism Minister that he would not be ctn acceptable or
competent tourism consultant. The respondent should therefom, the argument continues, prove a connection between his failure to take off and the libel, in order to receive damages for not taking offas a tourism consultant. This latter submission only
has to be repeated to disclose the weakness inherent in it. The libel was an allegation
of possible criminal behaviour on the part of the respondent, and ,:onsequently an
attack on his integrity and honesty, not only as a Minister of Government, but on his whole person. In addition, it related to the portfolio of tourism and consequently would
have a direct bearing on his subsequent professional activities in that area. It was indeed an allegation which would naturally affect his professional and wage-earning capacity, as it must be a natural consequence that persons in the industry would be reluctant to deal with a person tainted with dishonesty and lack of inte,;1rity having been involved in criminal activity directly related to the tourism industry. Ttle appellants are nevertheless correct in their assertion that there was no evidence fro IT1 anyone to the effectthat theyrefrained from giving business to the respondent as a ·esult of the libel.
But as I understand the respondent's case, he did not set out to do :iO but instead to relate evidence of the treatment of him by prior potential clients after ':he publication of the article, (e.g. the hostility towards him and the manner in which he was shunned) and to aid the jury in assessing general damages by giving some idea of possible earnings by a person in his discipline. The appellants relied on tr ,13 case of Tilk v
Parsons [1825] 2 Car. & P. 201; 172 E.R. "where it was held that a b,:1ker should bring persons to testify that they refused to buy his bread because of the ,libel." This case was a case dealing with the hearsay rule as is readily ascertained in a reading of the shortreport of the case The following extractdemonstrates:
" ... having.proved that certainpersons whom he was in the habit of serving with the plaintiff's bread, refused to purchase it any longer- The plaintiff's counsel wished to ask him whether t·1ey assigned any and what reason for such refusal.
Best C.J. -That question cannotbe asked. You might call these customers, who are .named in the declaration, rnnd might ask themon their oaths, what was the reason of t1·1eir not continuing to buy the plaintiffs bread; but I am clemrly of opinion, that what they said to the salesman is not evidence."
And so it was not- because it would have infringed the hearsay rule. In any event in that case "the declaration alleged as special damage that several persons (naming them) discontinued to take his bread." The plaintiff had therefore to prove the special damage '11hage In the instant case, there was no allegation of specific lossei;, and as I have already stated, the evidence given in that regard was assistance t() the jury in its assessment of general damages, and the learned judge was correc1 to have treated with it in that way. 2. Injuryto Plaintiff'sHealth The appellant contended on this aspect of the ground, that evidence of the respondent suffering injury to health was not admissible for the reason· that it was not pleaded. The question which arises is whether a plaintiff who is the victim of a 16 defamatory publication can recover damages for injury to his healtr·1 caused by the publication. In my view, quite apart from damage to reputation, a piaintifl' can recover for mental stress which he develops as a result of the attack on his character which brings him into riducle and cause the society particularly his friends to lower their estimation of him and as a result avoid his company. The earliest case which make:; some reference to this issue is Goslin v. Corry in 1841 7 Man & G. 341 but reported in 135 English Reports 143. In delivering his judgment in the case Tindale, C.J. madei what could be a passing reference and this is in the following words: "Taken in connection with the rest of the summing-up, tl1at amounts to no more than this, that the jury were to give 1:he plaintiff such measure of damages as they thought him entitled to for the publication of the libel and for the me1:ital suffering arising from the application of the consequeni;:es of the publication." [Emphasis added] The appellants relied on the case of Allsopp v. Allsopp5 H & N 534 r:iported in 157 E. R. 1292 which was a case in slander, the defendant having uttered s.tanderous words concerning the female plaintiff the wife of the 1 st plaintiff causing the wife "by reason of the committing of the grievance" to become "ill and unwell for a long time and unable to attend to her necessary affairsand business." This was however a case of slander, and the dicta of Martin B and Bramwell B upon which the appellants rely would in my view be inapplicable in a 1:;ase of libel, the former not being actionable per se whereas the latter is so actionable. The words of the learned Barons demonstrate that they wem speaking to the issue as it is relevant to cases of slander. Here are their words: "Martin, B. I am of the same opinion. The words ar:� not actionable in themselves. The law is jealous as to ac:tions for mere words, and therefore stringent rules have been laid down on the subject, to which we ought to adhere. Words which, if written, would be the foundation of an action of libel, in many instances only, afford a ground of action in sl,mder 17 if special damage results. But that special damage mllst be the natural or necessary result, not depending on the peculiarities of the particular individual. In the absenceof all authority it is the sounder way of dealing with this matter to hold that the action is not maintainable." And Bramwell 8: "I am of the same opinion. The question seems to me c,ne of some difficulty, because a wrong is done to the fe1male plaintiff who becomes ill and therefore there is damage alleged to be flowing from the wrong; and I think it did in fact so flow. But. I am struck by what has been said as tc> the novelty of this declaration, that no such special damage ever was heard of as a ground of action. If it were so I am at a loss to see why mental suffering should not be so likewise. It is often adverted to in aggravation of damages, as WHII as pain of body. But if so, all slanderous words would be actionable. Therefore, unless there is a distinction betvveen the suffering of mind and the suffering of body, this special damage does not afford any ground of action. The,ire is certainly no precedent for such an action, probably because the law holds that bodily illness is not the natural nor the ordinary consequence of the speaking of slanderous vvi::>rds. Therefore, on the ground that the damage here alleg1!d is not the natural consequence of the words spoken b:1' the defendant, I think that this action will not lie." The case of Wheelerv. Somerfield& Others [1966] 2 QBD 94 was however a case of libel. At the trial with a jury the plaintiff sought leave to amend [further] to claim that �Y reason of the libel he had btle.nirijured in his health as well as in his reputation, and to call medical evidence to support that claim. The application was refused. On appeal it was held that even if a claim for damages for injury to health was sustainable in an action for damage to reputation, it had rightly been excluded in tt1at case. Here is how Lord Denning MR dealt with this issue at page 104: "Then the plaintiff had this other point. He wanted to !�ive evidence of his ill health. He suffersseverely from catc1ract in the eyes. He sought to give evidence of it before the jury. First, on the ground that the cataract was aggravated, if not caused, by the libel. Secondly, that it was relevant on damages to show that he was a man who, if ruined b� the libel, could not get work elsewhere. I have never heard of a case (and counsel told us they have not found any) whe:re a man has been allowed to claim damages in a libel action for 18 injury to his health. A libel action concerns injury to reputation and not injury to health. I can imagine that there might be cases in which a libel might cause injury to health. I would not exclude the possibility of such an action. But none as yet has ever appeared in the books. And thi!i will not be the first. The plaintiff before us had to admit that his own medical evidence might not have proved that the cataract was due to the libel. So on the facts this point fails." In this cited case Lord Denning recognized the possibility of a claim for damages for ill•health arising in an action for libel. In my view whether the inju ·y alleged relates to mental or bodily injury there must be evidence which establish that the injury is the natural or necessary result of the libel before a plaintiff can recover damages for same. The libel must be proven to be the cause of the illness claimed. What was the illness alleged in this case, and how did the lernrnedjudge treat with it in directingthe Jury. Evidence The respondent testified as follows: 1. "Between 1987 and 1989 I kept assuring pee.pie that this would all soon be over. Basically no work - all my work had fallen aside. I was very isolated. I became very depressed. Almost everyone had desertedme . ... I started breaking down a lot - crying . . . I became obsessive. People would tell me I had to snap out of it. i could not sleep some nights. I found that I would nat, sleep, eat. As a result I got fat and developed diabetes .... 2. I developed obesity - stress related obesity. FnJm that it went to diabetes - obesity related diabetes, they ::all it "type two". The diabetes has led to severe cramps, to avoid going into those cramps in Court I have to drink large quantities of gatorade or something that keeps back the salts. Otherwise I would get cramps when I get cramp:: in the chest it is frightening .... 3. I am seeking to divide emotional distress. I h,:1ve suffered emotional distress for 4 years after indictment \/\las lifted and will only end when this case and the one in U.S. end. 19 All the emotional distress before the indictment (for 2 ye,;ars before indictment) were caused by the defendants. Then there were 7 months of the indictment and since thsrt 5 years of the prestigeous Gleaner Company claims rnnd maintaining and reporting in 1991 that I am guilty." The respondent also called as a witness Dr. Aggrey Benjamin Irons, a Consultant Psychiatrist who as of July 1995 started seeing the respondent "·for an intensive assessment of his psychiatric state." He carried out mental status •�xamination and began psycho-therapeutic intervention. I set out hereunder, his findings as given in evidence: "I found Mr. Abrahams to be someone who was previoLtsly high drive, high functioning, self motivated and relatively successful. These are areas I thought were directly and negatively affected by severely internalised trauma arising from a slur on his character. The following are my findin!;JS: (1) Severely reduced self esteem and self perception. (2) Severe anxiety with what we call phoebic response avoidance particularly avoiding public appearance and interaction. (3) Depression with hypersomnia {i.e. excessive feelings of sleepfulness, lack of energy etc.) Rebound nral dependent behaviour leading to severe wei11ht control problems. (4) Social"" withdrawal and isolatfon" secondary to 1he phenomena mentioned in 1, 2 and 3 above. It was my opinion at the time and still is that Mr. Abraham's self-image, public image and personality have bnen damaged to an extent requiring an on gcing psychotherapeutic intervention which would involve both psychoanalysis and pharmocologic intervention over the next 2 years at least for the next 2 years. Pharmacolc,gic i.e. medication which he had already begun." The doctor thereafter offered the following opinion which seems to connect the respondent's condition with the libel: "It would follow that if vorbal accusations or wri1ten accusations were being consistently applied to the varii:1us aspects of his profession - it would have a serious imp.act on him and his ability to perform. It is very clear that lhat 20 sequence of events would lead to the situation I have earlier described." Then the doctor in cross-examination concedes that he had no way of saying that the state of the respondent was due solely to the publications. As can be gleaned from the above review of the evidence on this issue, most of the illness complained of by the respondent relates not to physical injury such as the obesity and diabetes, but to the effect the publications had on his mental capacity to function and to do so in such a way that exuded confidence and trust in his own judgments. In short, he becamedepressed, drew into his shell, avoideid his friends and society and lost confidence in himself and garnered unto himself a low self-esteem. In my view those are matters which the jury could correctly take into consideration when determining the amount of compensatory damages that should be awarded to the respondent. This however depended upon whether the jury found tha·: the condition as described by Dr. Irons was a natural cause of the publications. The dc1:tor's inability to connect the condition solely to the publication must of course have bt:,en also relevant to the jury's consideration. The respondentcame under his treatment in 1995, a period of approximately eight years after the publication. During that period, 11,e appellant had been indicted in the United States of America on charges arising ,:,ut of the same subject matter contained in the publication. However the indictment had long been withdrawn at the time of the treatment of the respondent by Dr. Irons The appellants had however at that stage continued in their allegation neither havin;i withdrawn, nor apologised for, the libel committed upon him. In those circumstances, the jury could in spite of the intervening indictment, nevertheless placed the solt:i cause of the respondent's condition upon the publication and the persistence as to its truth by the appellant. As allegations have been made as to misdirection by the liaarned judge on this aspect an examination of those directionsare appropriate. 21 He directed thus: "Now, we are going to look at injury to health; injury to health. Members of the jury, you may take into consideration in assessing damages, any mental distness, any mental distress .or illness caused to the Plaintiff ms a result of the publication. You cannot take into consideration mental suffering or illness caused not to the Plaintiff, b1.1t to his family; any member of his family as a result of the publication, nor mental distress caused to the Plaintiff by sympathy for the suffering endured by others. You may take into consideration in assessing damages, any montal distress or illness caused to the Plaintiff himself as a msult of the publication. . .. but you cannot take into considemtion mental suffering or illness caused not to the Plaintiff, but to members of his family. . .. I mention too, members of the jury, injury to feelings. This is generally assumed. If. your good name had been sullied, then the law will assume injury to feelings. You may award damages for the mental suffering arising from the apprehension of the consequences of the publication. The apprehension of the consequences of the publication. If there has been any kind of highhanded, oppresHive, insulting or contumelious behaviour by the Defend :mts which increases the mental pain and suffering caused by the defamation which may constitute injury to the Plaintiff's pride and self-confidence, these are proper element;; to take into account, ... " The learned trial judge thereafter literally took away from the jury any consideration as to an award of damages in relation to the physical iqiuries testified to ····· ·· ....,, ,...... ,...... -,, ...... , .,.,.,,,,,,.,...... ", ---··· by the respondent. He directed them thus: "Now, it would seem to me that you would need medical evidence from a doctor to say that the obesity caused the diabetes. You heard from Dr. Irons, the psychiatrist, and he couldn't tell you that, so what you have is from Mr. Abrahams that diabetes sets in. It would seem to me, members of the jury, that would not be evidence, you w:,uld need evidence from a doctor to satisfy the balancfr of probability that the publication caused the stress wtlich caused over-eating, which caused diabetes." After summarizing the evidence of Dr. Irons, and assisting the jury how to treat with the evidence of an expertthe learnedjudge directed them further as follow:;: "So what you have to do is to look carefully at his ( Dr. Irons') evidence and see whether on his evidence you are 22 satisfied on the balance of probabilities that what he outlined to you here was caused by the libelk,us publications, because that is key, you must say whetller the libellous publication caused what the doctor had gi·w1en to you here. And if you are not satisfied again on :the balance of probabilities, then you can't act on it; but if :1·ou are satisfied on the balance of probabilities, of course, '.j'ou may act on it." The learned judge later in his summing-up reminded the jury of Dr. Iron's evidence that he had no way of saying the respondent's health was due solely to the publication. The passages cited above demonstrate that the learned j1J1dge directed the jury correctly as to the law, leaving for their consideration the evidence of mental stress, loss of self-esteem, depression and all the other mental conditions testified to and withdrew from their deliberations the question of any physical injury suffered by the respondent. He was also careful to inform them that the mental condition described by the doctor and the respondent himself could only enter into their dEiliberation if they found on a balance of probabilities that the cause of the condition wa:; the defamatory material in the publication. In my view the learned judge was cermet and I see no reason to fault his directions on this aspect of the case. 3. Effecton son The appellants next challenged the admissibility into e,vidence of the respondent's allegation that his son was very distressed as a result of the publication of the libel. In my view this contention lost any merit it may have had when the learned judge directed the jury not to consider that evidence in the passage c�ited above. For convenience, I repeat it hereunder: "You cannot take into consideration mental suffering or illness caused not to the Plaintiff, but to his family; mny member of his family as a result of the publication, not mental distress caused to the Plaintiff by sympathy for 1the sufferingendured by others." This complaint has no merit. 23 4. Aggravationof damages Under this head the appellant, impliedly accepting that there w.as an abundance of evidencewhich could go to aggravation of damages, made a challe 11ge merely to the fact that the evidence of publication in articles subsequent to the subject articles was inadmissible without being pleaded and if not the learned judge did not specifically direct the jury that no damages could be awarded in respectof those publications. The subsequent articles were however admitted to show malice in the appellants in keeping the whole question of the respondent's condue1 in relation to the kick-backs continuously in the public's eyes. The appellants however maintained that having admittedthem, the learned judge failed to direct the jury.that n" damages could be awarded in respect of the content of those articles. For thi�; proposition the appellants relied on the cases of (I) Pearson. v. Lemaitre 5 MAN & G 718 reported in [1843] 134 E.R. 742 (2) Darby v. Ouse/ey (1856] 156 E.R. 1093 ctnd Anderson v. Calvert [1908] 24 T.L.R. 399. In Pearson v. Lemaitre{supra) Tindal C.J. at page 749 stated: "And this appears to us to be the correct rule, viz that either party may, with a view to the damages, give evidenc13 to prove or dis--prove th�--��-i�!-�"!C.�.�iy�_in.1h�. . _ . mind 'of ffie piibHsher of defamatory matter; but that, if the evidence given for that purpose, establishes another ec1use of action, the jury should be cautioned against giving any damages in respect of it." This case establishes the correctness in respect of the admissibility of such evidence to establish malicious motive in the appellants. In so far as the directions by the learnedjudge as to damages in respect of the other articles, them was never any issue in the case in respect of this, the learned judge confining himse 1f by reference to the Statement of Claim, to the articles upon the content of which, the respondent founded his claim. 24 In the case of Anderson v. Calvert (supra) Cozens-Hardy, M.R. in delivering the judgment of the Courtapproving Pearson v. Lemaitre(supra) had this to say: "But it was urged that the damages awarded were excessive and that the learned Judge misdirected the jury by directingthat they were entitled to take into considemtion all the facts laid before them which the jury thought ougr1t to be reliedon for the purpose of assessing damages. In his Lordship's opinion this contention ought not to prevai . It was well settled that in an action for defamation the juri,, in whose province the assessment of damages specially lay, were not limited in any way by the amount of pecuniary loss actually proved. They might give punitive damages and, where justification had been pleaded and malice had been proved, they were entitled to have regard to all the conduct of the defendant down to the time they gave their verdict 'Praed v. Graham' (24 Q.B.53). Circumstances going to prove malice could not be excluded, whether those circumstances were before or after the publication of the libel sued upon - 'Pearson v. Lemaitre' But the jury o.1ght not to treat such prior or subsequent circumstance�. as giving a separate and independent right to damages." In the instant case there was an abundance of evidence which if accepted, would demonstrate the justification for an award of aggravated damages. The learned judge was careful in taking the jury through not only that evidence but also the evidence which if accepted would mitigate the damages. There being no real challenge to the direction of the teamed judge in respect of th•� evidence from which the jury could award aggravated damages, there is no need to examine that evidence in any detail. It is necessary only to point summarily to the following evidence: (i) The persistence of the appellants in the plea of justification, up to the time of the trial and this in spite of the fact that that defence had been struckout by this Court in the light of the appellants' admission that they were not in possession of the evidence to support that plea, and the unlikelihood of any such evidence becomi rig available at a reasonable time. Noteworthy also is the appellants' persistence in th•:! plea even after the respondent had been dismissed on a charge arising out of the same allegation made in the UnitedStates of America. 25 (ii} The lateness of the apology, this being published on the 9th anci 10th July, 1995 nearly eight (8) years afterthe publication. (iii) The wording of the apology which the jury could have concluded was not sincere. It reads as follows: "In September 1987, the story of which complaint is made concerning Mr. Anthony Abrahams, former Minister of Tourism of Jamaica, came from the Associated Pres:s of the United States, in the ordinary regular coursu of business. At the time, we honestly believed the information to be true and accurate considering the usually reliable source from which it came. This agency has supplied . us with material suitable for publication ov,:1r a number of years, and is responsibleand reputable. Accordingly, we published the · information in the issw3 of this newspaper on the 17th of September, 1987. We were sued .by Mr. Abrahams in libel and in our defence we pleaded justification and qualified privilege, sincerely and innocently believing that we • could obtain evidencl:! to support these defences. As it turned out the Cou1·t of Appeal dismissed these defences since the evidence was not forthcoming. We now realise that we cannot sw;tain these allegations. Accordingly, we hereby withdraw the allegations. In the circumstances we tender our sincere apologie :s to Mr. Abrahams and are very sorry for any embarrassment or discomfortarising from the article." It is an apology which in its very words denotes that it was being offered not because the allegations were false but because the evidence to prove it was not available. The jury certainly could have viewed it in that regard and finding that it was not sincere use that as an element in determining whether aggravated damages should have been awarded. Indeed counsel for the appellants, at trial, as t·,e learned judge told the jury in his directions, submitted that the apology "is a wholl11 honest apology with no hypocrisy whatever'' and then stated: "We apologised because we can't prove it. We m:1de allegations and we could not get the evidence we hopet:I to get. To pretend we did not believe would be to tell a pi1ck of lies. 26 (iv) The fact that on the evening of the first publication, the respondent spoke to the Editor of the appellants' daily newspaper, and denied the content of the defamatory article and offered his denial in writing. By agreement he took the d1:1nial on that very afternoon to the appellant's office; the Editor having promised to publish his denial on the following day in the appellants' evening paper in which the libel had been published. Instead the appellants again published the article in its Daily Nev,spaper with the omission of one section already referred to in this judgment. The denial of the respondent was not published until sometime after, not in the apoellants• Daily or Evening paper but its Sunday Newspaper. (v) The subsequent offer by the Managing Director of the appellant/company to the respondent of a job at a radio station and telling him that his best bet was to take the contract with the station, and in those circumstances he would get an apology but he must not expect any damages and if he persisted it will be five years before he will see the end of the matter. Those inter alia were matters which the jury could have considered in their determination of whether the appellant acted with malicious motive ,ind whether they had any genuine sorrow or regrets at having published defamatory m:1tters concerning the respondent. On those matters the jury received adequate and 1::orrect directions from the learned judge, and consequently the award cannot be intertered with on this ground. Violation of Section 22 of the Jamaica Constitution The appellants next argued, using interpretations given to Article 1 O of the European Convention on Human Rights ("Article 1 O") on the basis of its similarity with Section 22 of the Constitution ,("Section 22") that the award oi $80.7m to the respondent by the jury is in breach of the provisions of Section 22. 27 In order to explain the contention of the appellants it is necnssary to set out Section 22 of the Constitution, also Article 10: "22. - (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference, and free,iom from interference with his correspondence and other muans of communication. (2) Nothing contained in or done under the auth<>rity of any law shall be held to be inconsistent with c,:r in contravention of this section to the extent that the la!v in question makes provision - (a) which is reasonably required - (i) in the interests of defence, public saf1:1ty, public order, public morality or put>lic health; or (ii) for the purpose of protecting J:he reputations, rights and freedoms of ott,er persons, or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority rnnd independence of the courts, or regulating telephony, telegraphy, posts, wirel,:iss broadcasting, television or other meami of communication, public exhibitions or put>lic entertainments; or (b) which imposes restrictions upon public officfrrs, police officers or upon members of a defence force." [Emphasis mine] Article 10 states: "1. Everyone has the right to freedom of expresi!ion. This right shall include freedom to hold opinions and to receive and impart information and ideas witt,out interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterpris1HS. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to :;uch formalities, conditions, restrictions or penalties as . are prescribed by law and are necessary in a democratic 28 society, in the interests of national security, territorial integrity or public safety, for the prevention of disorde1r or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing and disclosure of information receivecl in confidence, or for maintaining the authority and impartiality of the judiciary." [Emphasis added] Both provisions recognize the right of individuals to freedom of expression but set up conditions to those rights as are provided for by law. In this context law means either Statute or common law. The provisions therefore recognize that an individual does not have an unrestricted freedom to expression, such freedom having to be balanced against another individual's right not to have his reputation tarnished by expressions founded in falsity, without foundation and enhanced by the malice of the communicator. The law in our jurisdiction does make provisions in relation to defamation, and consequently the right to freedom of expression wo1.1ld be subject to those laws. An apparent difference exists, however between Section 22 and Article 1 o and this is demonstrated in the underlined words of the provisions as set out above. Whereas Section 22 speaks of the law making provisions which are "reasonably required", Article 10 speaks to prescribed laws and which are "necessary in a democratic society". As the case relied on by the appellants was based on the wording of Article 10, it is necessary to determine whether the dicta in that case would nevertheless be applicable in our jurisdiction given the apparent difference in the provisions. The case relied on is Rantzen v. Mirror Group Newspaper Ltd and Others [1994] Q.B.D. 670. This case was cited for more than one proposition but for the moment I will deal with the approach taken in respect to the applic;:1tion of Article 10 to English Law, the case being from the English Court of Appeal. It is not necessary to set out the facts. Section 8 of the Courts and Legal Services Act W90 permitted the Court of Appeal for the first time not only to order a new trial in defamation cases tried 29 by juries, but also to substitute another award in any casewhere the damages awarded by the jury were "excessive". The Court of Appeal in the Rantzen casie held that these provisions "should be construed in a manner which was not inconsiste,nt with Article 1 o of the European Convention for the Protection of Human Rights s,nd Fundamental Freedoms. It also held that .an almost unlimited discretion in a jury to award damages for defamation did not provide a satisfactory measurement ·'or deciding what was a necessary restriction in a democratic society in the exercis,:i of the right to freedom of expression under Article 10 to protect the reputation of othe·rs. The common law therefore required that large awards of damages by a jury should be more closely scrutinized by the Courtof Appeal than hitherto and that in the circumstances the sum of £250,000 awarded by the jury was excessive because it was not proportionate to damages suffered by the plaintiffand would be reduced to £110,000. In coming to this conclusion, Neil L.J. relied upon the dicta of Lord Goff in his speech in the House of Lords in the case of Attorney�General v. Guardian Newspaper Ltd (No. 2) [1990) 1 AC. 109, 283-284. He quoted the following dicta of Lord Goff: ···"The··exercise oftheright to freedom··of expression under·· article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include 'the interest of national security and preventing the disclosu1·e of information received in confidence'. It is established ir1 the jurisprudence of the European Court of Human Rights that 'the words 'necessary' in this context implies the existonce of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I havE1 no reason to believe that English law, as applied in the Courts, leads to any different conclusion." Neil, L.J. then concluded, on this point: "If one applies these words it seems to us that the grant of an almost limitless discretion to a jury fails to provide a 30 satisfactory measurement for deciding, what is 'necessary in a democratic society' or 'justified by pressing social need'. We consider therefore that the common law if properly understood requires the courts to subject I :irge awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has t,een regarded as the barrier against intervention should be lowered. The question becomes: 'Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to reestablish his reputation'." This dicta, it would seem ended the restriction in the Court of Appe1al in England to interfere with excessive awards of juries only if they were so high that no sensible persons would have given such an award. Neil, L.J. as was Lord Goff in the Guardian Newspaper c;:1se (No. 2) was declaring what was the common law of England in such an issue, equating it with the terms of Article 10. In our jurisdiction, we must look to the provisions of our Constitution to see whether the approach adumbrated by Neil, L.J. would be applicable to such cases. There is no provision in our Constitution which speaks to the· provision of law being "necessary" thereby implying "a pressing social need." I c1m however in agreement with the approach adopted by the English Court of Appeal, and consequently would bring a similar approach to the interpretation of ::;ection 22 of the Constitution. Without placing any limits on awards made by juries in d1�famation cases, I would nevertheless conclude that an award which exceeds an amount (given the circumstances of a particular case), which is reasonably required for the protection of the plaintiff's reputation, could be subject to interference by this Co .,rt, either by the making of an order for a new trial or as in this case by consent, cl variation of the amount of damages awarded. I would therefore rephrase the question posed by Neil, L.J. to mad as follows: Could a reasonable jury have thought that this award was one which was reasonable to compensate the plaintiff ,:ind to re-establish his reputation? 31 Though using the test adumbrated in the Rantzen case (supra) Mr. George, Q.C. for the appellants invited the Court to look at varying issues conc1�ming the award of damages in defamation cases. These as I understand him relate to: (i) a comparison with the award of damages in other defamation cases; (ii) -a.comparison with awards in personal injuries ca�,•es; (iii) a general review of- .thedamag es awarded· by the jury - on the basis -that in the particular circumstance:; no reasonable jury would award such exces:;ive damages. Awards in other Defamation cases Mr. George, Q.C. contended that counsel in defamation canes ought to be allowed in addressing the jury in such cases to make them aware of thI, level of awards made in previously decided cases. In my view defamation cases are subjective to the character and circumstances of the defamed person, and the effec:t of the libel on him/her. They necessitate consideration of the particulars surroundin1� the publication of the defamatory matter together with the conduct of the publisher, and any degree of malice exhibited by him/her. All these create a great deal of variabl,:is which are not conducive to making worthwhile comparisons one with the other. It is 1br those reasons that I would be E�l���n.�to acCEJpt the f;":lt>_mis�)CJ.n.of the appellant<>r:,tt1]� issue. Neil, L.J. however, in the Rantzen case (supra) was of the opi ·1ion that in order to give weight to the provisions of Article 1 O which gave the protection against freedom of expression where the protection of reputation was prescribed by law [that] juries could be told about previously decided cases in which awards had been made or confirmed by the Court of Appeal. Here is what he said: "We are not persuaded that at the present time it would be right to allow references to be made to awards by jurie :; in previous cases. Until very recently it had not been ·the practice to give juries other than minimal guidance aH to how they should approach their task of awarding dama;ies and in these circumstances previous awards cannot be regarded as establishing a norm or standard to which 32 reference can be made in the future. Awards made by the Court ofAppeal in the exercise of its powers under sec1ion 8 of the Act of 1990 and Ord. 59, r. 11(4) stand on a different footing. It seems to us that it must have been the intention of the framers of the Act of 1990 that over- a period of time the awards made by the Court of Appeal would provide a corpus to which reference could be made in subsequent cases. Any risk of over citation would have to be controlled by the trial judge, but to prevent referer1ce to such awards would seem to us to conflict with 1:he principle that restrictions on freedom of expression shc1.Jld be 'prescribed by law.' The decisions of the Court of Appeal could be relied upon as establishing the prescritled norm." In our jurisdiction there is no provision for the reassessment ,:,f a jury's award except by consent of the parties. There are however few cases in de:'amation decided by judges sitting alone, the damages in some of which have either t>een affirmed or varied by the Court of Appeal. The trial by jury of defamation case:; are in fact in a minority, and consequently this case offers the first opportunity in a long time for the Court of Appeal to determine the correctness of a jury award in such cases. I agree however that we, like the English Courts, could begin to develop a ·eservoir of such cases which could become a prescribed norm from which a jury could get some assistance in deciding an award in the particular circumstances of the case over which they preside. I do however place on this approach the qualification with which I commenced my treatment of this issue. Juries and judges would have to approach such comparison with utmost care given the variables that exist on a subjective assessment of damages in a particular case. In the instant ca�,e there was no complaint either here or below of the judge's "omission" to direct the jury in respect of existing precedents or any restriction by the learned judge of counse attempting to do so. Instead the appellants invited this Court to make the comparisom; with cited cases in determining the reasonableness of the award on the basis that the ri:1spondent is only entitled to damages which is reason'Elblyrequired to protecthis reputation from abuse of 33 the right of freedom of expression enjoyed by the appellants by virtue of Section 22 of the constitution. This point can be dealt with by summarily expressing the view that the cases cited bear no worthwhile comparison to the circumstances of this case, which disclosed a serious libel and a profound effect upon the respondent, who was kept under the shadow of the allegations for a long period of time. I need c,nly repeat what I said in the case of Margaret Morris et al v. Hugh Bonnick S.C.C.A. 21/98 delivered on the 14th April, 2000 (at page 23) [unreported]- "In my view it is difficult given the nature of libel anc:I its effects which must have direct bearing on the particular circumstances, including the person defamed as also the occasion and magnitude of the publication, to be guided by another case in which differentcircumstances existed." The cases cited, in my opinion would therefore be of no assistance in determining the reasonableness of the award in this case. PersonalInjuries Cases This case is perhapsthe first in our jurisdiction where it has be1m proposed that damages in libel cases should be compared with decided cases in relation to quantum of damages in personal injury cases, in order to come to a proper a::;sessment. As I .. have-· . ...·. said earlier,_.... ,.··•·-· ··�··• ...... ,, • ..... there-·•-•···•·•-~·· ,. -.·.-·have -•· __.,.. ,,....•... _ .., ... been .,.. very...... -.. .. few•· -··-·•...... ,._ ...... : ..jury...... ,·,-..-.•. -,.· _.,., __ __trials,. .,_____ - in defamatior··•- .•-· -.,. cases·-·- in recent : times, and indeed my memory suggests that this has been one of onl�1 two such cases in the last ten years, the other still pending on appeal. There have t,,3en some cases which have been tried by judges alone which in my view are so far r,:imoved from the depth, seriousness and circumstances of the libel in the instant case!, that no useful comparisons can be made with them. In the English jurisdiction the recent trend of high awards by juries has brought into focus the question of whether the aw,ards are so high, that the Court of Appeal ought to find these awards unreasonable, gi11en of course the circumstances of each particular case. As a result the learned Law l..ords, have been stressing the cautious scrutiny that ought to be given to such awards. Hence, the dicta 34 arising in the Rantzencase (supra) in relation to the effectof Article 1 :i (supra), as also the contention by some lawyers that juries ought to be addresse1d, in relation to precedents in cases in which the Court of Appeal, has either confirm1:,d or substituted the quantum of damages in other libel cases. A further contention ,:1lso goes to the question now under consideration. In 1972 in the case of Cassells & Co Ltd v. Broome and An,:,ther [1972] A.C. 1027, at pages 1071-72, Lord Hailsham of St. Marylebone, L.C., 1·ejected such a comparison when he said: "In actions of defamation and in any other actions wh13re damages for loss of reputation are involved, the principl1:i of restitutio in integrum has necessarily an even more hi,1hly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past ,:ind future losses, but, in case the libel, driven undergroL 11d, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury suffic 1:mt to convince a bystander of the baselessness of the chaq�e. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 115, 150: 'It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputat 1:m. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by dama ;1es operates in two ways- as a vindication of the plaintiff to the public and as consolation to him for a wrong do,e. Compensation is here a solatium rather than a monet.ary recompense for harm measurable in money.' That is why it is not necessarily fair to compare award:; of damages in this field with damages for personal injuries .... What is awarded is [thus] a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are describec as being 'at large'. In a sense, too, these damages arn of their nature punitive or exemplary in the loose sensEi in which the terms were used before 1964, because they inflict an added burden on the defendant proportionatll to his conduct, just as they can be reduced if the defenclant has behaved well - as for instance by a handsc,me 35 apology - or the plaintiff badly, as for instance by provoking the defendant, or defaming him in return." Lord Hailsham was here expressing the view that the naturei, circumstances, and method for assessing damages in defamation cases, were such that may make it unfair to the plaintiff in a particular case to determine the quantum of damages he deserved, by comparison with damages awarded in previous person,!11 injuries cases. Then in Rantzen v. Mirror Group Newspaper [1986] Ltd (supra) Neil L.J. having reviewed the authorities on this issue said: "We have come to .the conclusion, however, that there i :; no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to pro,,ide guidance for an award in an action for defamation. De�ipite Mr. Gray's submissions to the contrary it seems to us that damages for defamation are intended at least in part i:ts a vindication. of the plaintiff to the public. . . . We therefore feel bound to reject.the.proposal that the jury should be referred to awards made in actions involving serious personal injuries. It is to be hoped that in the course of time a suries of decisions of the Court of Appeal will establish s•:>me standards as to what are, in the terms of section 8 of the Act of 1990, 'proper' awards. In the meantime the jury should be invited to consider the purchasing power of any award they make." So that up to the time of the Rantzen case (supra) the Courts in England, were not prepared. to sanction any· compar,sori with ·personal. injuries cas;es.·· One· of .the factors of defamation which distinguishes it from the personal injuries cases is the fact that the plaintiff is entitled in the former case to vindication to the pub1i1::. This being so, he may sometime in the future, after the case has been laid to rest, ·!ind that in some way the defamatory matter is raised to the surface again, In those circumstances, in order to protect his reputation, he would have to be able to demonst·ate to the public that in so far as that libel is concerned, he was awarded a sum sufficient to vindicate his reputation. These and other factors, such as have already been des(:ribed, are in my view good reasons why such comparison ought not to be made. But in the case of 36 John v. M.G.N. Ltd [1997] Q.8. 586 the English Court of Appeal per Sir Thomas Bingham M.R. after an examination of previous authorities, includin�1 the cases cited heretofore, expressed the following opinion: "It has often and rightly been said that there can be1 no precise correlation between a personal injury and a sum of money. The same is true, perhaps even more true, of injury to reputation. There is force in the argument that to pe1rmit reference in libel cases to conventional levels of award in personal injury cases is simply to admit yet another incommensurable into the field of consideration. Then3 is also weight in the argument, often heard, that conventional levels of award in personal injury cases are too low, and therefore provide an uncertain guide. But these aw:irds would not be relied on as any exact guide, and of course there can be no precise correlation between loss of a limb, or of sight, or quadriplegia, and damage to reputation. But if these personal injuries respectively command conventional awards of, at most, about £52,000, £90,000 and £125,000 for pain and suffering and loss of amenity ( of co llrse excluding claims based on loss of earnings, the cost of ::are and other specific financial claims), juries may properl:1 be asked to consider whether the injury to his reputatio ·1 of which the plaintiff complains should fairly justify any grei.ater compensation. The conventional compensatory scale:> in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament. It is in our 'liew offensive to public opinion, and rightly so, that a defamc1tion plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons." The appellants rely on this cited passage, not in an attempt to cittack the learned judge's summing-up in this regard, nor as a complaint for not having been allowed to address the jury in this regard, but by way of an invitation to this Court to accept those principles in determining whether the award by the jurywas reasonablEl. Lord Bingham in the John case (supra) was careful to ackne>wledge that the awards in personal injury cases could never be used as an exact guide for awards in 37 defamation cases. His dicta suggests that juries in a general sense ::ould be asked to say whether damages given to vindicate one's reputation shoulcl be higher than damages awarded in for example a personal injury case in whici1 the injuries are serious and a conventional figure has already been set in previous ca�;es. Should we follow the English trend in our jurisdiction? As .Lord Diplock said in Mccarey v. Associated Newspapers Ltd (no. 2) [1965] 2 Q.B 86 at 109, the comparison seems to be a legitimate aid in considering whether the c1ward of damages by a jury is so large that no reasonable jury could have arrived at thctt figure. In doing so one would expect a jury having been exposed to the degree of damages awarded in serious personal injury cases, such as a person made a cripple or losing an eye to ask themselves whether the figure to be awarded would be reasonable having regard to those cases. However, I am of the view that although those cases can be used as a general guide one must also in coming to a conclusion on damages in a defamation case consider what is reasonable to protect a person's reputation given all the factors already referred to in this judgment. None of the cases cited in reliation to personal injury cases, can inspite of the suffering and pain consequent on pernonal injury qlJitl? · equate with prolonged mental agony and the subjection to the. contempt of the public and his friends which the respondent suffered as a result of the libe·I and the related subsequent conduct of the appellants. Review of Damages - arethe Damages Reasonable? . As I have concluded earlier, the reasonableness of the award must be related to whether it is an amount too excessive to be considered an amount reasonable to vindicate the respondent's reputation given the provisions of Se,ction 22 of the Constitution as it relates to the appellants' right to freedom of expres�;ion. There were several circumstances in this case which make it reasonable for the jury to have 38 awarded aggravated damages. Firstly, the libel itself contained sorious allegations concerning the respondent. In spite of an account denying any involvement in the alleged "kick-backs" allegations given to the appellants' newspaper, it failed to publish the respondent's denial but instead subsequently published the Article in its Daily Newspaper, albeit with the omission of a particular part. The respondent's denial was never published until a few days after. Secondly, the appellants insisted on the plea of justificatio·1 throughout the process and up until the trial of the issues always taking the stan,:I that it was the inability to get the evidence which made them unable to prove the truth of the allegations. Thirdly, there was no apology until some eight years after and that apology clearly indicated that it was being offered purely because the evidence to prove the truth of the allegation was not available. In addition, the award must have included, as it could in law, damages which took into account the pecuniary loss to the respondent, as also the mental stress and the serious hurtto the respondent's feeling. I would conclude that the circumstances of this case entitled th:� respondent to a high level of damages in order to vindicate his reputation which was nearly almost destroyed by the libel published of him. However, the damage!; of $80,700.000 awarded in the context of previous awards in either personal injuq, cases, or other awards either affirmed or varied by this Court in defamation cases, cc1uld be described as phenomenal and are multiple times any award ever granted in Jamaica in these types of cases. I am therefore of the view that in spite of the grievous nature of the publications the abundant evidence of malice in the appellants' qualified apology offered so long after the publication and the persistence in the plea of justification, the award of $80 39 million is in excess of an amount which is reasonably required by l;:1w to protect the reputation of the respondent, given the provisions of Section 22 of the Constitution. Nevertheless, what is a reasonable award must relate to all thc,:se matters, and consequently damages must be of a high level in order to vindicate the respondent's reputation. By virtue of the consent of the parties, I would set aside the award of $80. 7m for compensatorydamages and substitute therefore the sum o1' $35m. ExemplaryDamages I come now to the Respondent's Notice the complaint in which reads as follows: "The jury erred in refraining from awarding any sum for exemplary damages when there was every justificatic,n to do so in the evidence before the Court despite the lev1�I of compensatorydamages awarded." In this ground the respondent contends that there was abundant evidence to show that "the evident intention was not only to harm the plaintiff/respondent but also to be sensational, to stir up public interest, and to profit thereby from the sale of their papers." In the alternative we are asked to vary the damages to include an award for exemplary damages in the event that we reduce the award for compensatory damages awarded by the jury. The basis for this proposition is the fact that the learned judge directed the jury that if their award for compensatory damages was in their view sufficientlyhigh, then they need not consider an award of exemplary d:1mages. Before exemplary damages can be awarded there must be proof that the defendant had no general belief in the truth of what he had publish1:1d and had been motivated by a "cynical calculation" that publication was to his nece:;sary advantage. See the Rantzen case (supra) in which it was held that such an award "was only appropriate where those conditions were met, and where the sum awarded by way of compensatory damages was insufficient to achieve the punitive and 1:leterrent purpose 40 underlying exemplary damages and should not exceed the minim1Jm necessary to achieve that purpose. Both conditions must be proved. In the instan1 case the learned judge directed the jury adequately on the principles applicable in respect of exemplary damages, and indeed no complaint has been made in that regard. The jury made no award of exemplary damages, either because in following the learned judge's directions they came to the conclusion that the sum of $80.7m they awarded for compensatory damages was sufficient to punish the appellants and to deter others from similar conduct, or because they came to the conclusion that the evidence dicl not establish the two necessary elements. Consequently, the question of whether such damages can be awarded is open forthis Court's decision. Although there is sufficient evidence upon which the jury could have found that the appellant had no genuine belief in the truth of tt,e content of the Article, there was in my opinion no evidence upon which the jury coukl have concluded that the appellants were motivated by monetary gain in publishing tht! Article. On that ground I would refrain from making any award for exemplarydamagei;. Nevertheless, I should add that the sum of $35m which I would substitute for the jury's award is in my view sufficient to achieve the purpose of punishing the appellants anc\ deterring others from behaving in the manner in which the appellants acted in this case• Taxation I have read in draft the reasons given by Langrin, J.A. for not accepting the arguments of the appellants, in this regard, and need say nothing more than that I agree with his conclusion therein. I would allow the appeal, set aside the award of $80. 7m and Hubstitute therefor an award of $35m. 41 HARRISON, J.A.: This is an appeal by the defendants/appellants from an award of $80,700,000 and costs for damages for libel, assessed before Smith, J., with a iiii< jury, on July 17, 1996. The libel complained of, and recited in the statement of claim, was contained in the first of t.hree published newspaper articles. The first publication •\;•., ... , .. appeared in the respondi'ht Gleaner-owned Star newspaper on September 17, 1987. It reads in paragraph 3 of the statement of claim: "AUTHOR Robin Moore says his personal diary and files contributed to Federal Investigators suspicions that New York business executives paid kickbacks to Jamaican officials for lucrative tourism promotion contracts. 'All I can say is I suspected the Minister of Tourisrn was exacting a toll.' The writer, Robin Moore ,:,f Westport, told the Advocate of Stamford in a copyrig r1t story published Tuesday. 'Call it a bribe, call it anything you want,' said Moor1:?, the author of 'The French Connection', a novel on drug smuggiing·:·" ·· The Advocate reported Sunday that Federal authorities in Connecticut are investigating public relations and advertising executives suspected 1:>f paying Jamaican officials one million dollars for contracts worth $40 million from 1981 - 1985. The Advocate, quoting anonymous sources close 1:o the probe has said five or six executives of the public relations firm Ruder Finn and Rotman and tte advertising firm Young and Rubicam are the focus of the investigation. Officials of both firms have denied any wrongdoir g and said they are co-operating with investigators. 43 nothing to do with any kickbacks, if indeed they did happen.' U.S. attorney Stanley Twardy Jr., has refused 1:o confirm or deny the existence of the kickbac�(s investigation." The second publication in the respondent Gleaner on :September 18, 1987, was in similar terms, with one deletion. The third publication also appeared in the respondent's newspaper on September 19, 1987 and reads, as recorded in paragraph 5 of the statement of claim: "Absolutely no reference was made, or intended to be made, to the current Minister of Tourism in the headline: 'Robin Moore: I suspected Jamaica Tourism Minister,' in the second paragraph of the Associated Press (AP) story, 'All I can say is I suspected the Minister of Tourism was exacting a toll, the writer Robin Moore of Westport, told the Advocate of Stanford ... ' which was published on page 2 of yesterday's Gleaner Sept. 18, 1987." The respondent issued his writ on September 22, 1987, appearance to which was entered on October 2, 1987. Thereafter, no defence having been filed, interlocutoryjudgment was entered in default of defence. An application by the appellant to set aside the said judgment was refused by Edwards, J., who was reversed on appeal, and defence was ordered to be filed. An application for further and better particulars was refused by Bingham, J. who was reversed by the Court of Appeal, which in addition, struck out the defence of justification on the basis of the absence of " ... clear and sufficient evidence of the truth ... " of the said publication. Consequently, the matter proceeded to assessment of damages on July 17, 1996, before Smith, J., with a jury. 45 charges against the respondent, had been dismissed previously from his post of Director of Tourism by the respondent who was then the Minister of Tourism. In addition, Young and Rubicam, a public relations firm in the USA, had pleaded guilty to the offences relating to the "kickbacks", the bribes, in February 1990, and asserted that the respondent had nothing to do with any "kickbacks". This resulted in the said withdrawal of the indictment before the grand jury. The appellants were aware of all this. The appellants did not publish an apology to the respondent until July 9 and 10, 1995. At the hearing before us, the parties consented to the 1exercise of the power of the court under Rule 19(4)(a) of the Courtof Appeal Rule�, 1962, where in the event that the Courtis of the view that the damages awarded by them were excessive or inadequate was empowered to: " ...substitute for the sum awarded by the jury such sum as appears to the Courtto be proper." In addition, the respondent filed a respondent's notice under the provisions of Rule 14(1) of the said Rules, seeking the aware! of exemplary damages by this court. Mr. George, Q.C., for the appellant, in support of his groLinds of appeal, argued that the damages awarded were manifestly excessive, and no reasonable jury would have made such an award and that the learned trial judge failed to warn the jury that there was no evidence of loss in the consultancy business of the respondent, no award should be made for injury to the respondent's health as opposed to his hurt feelings and no evidence should have be�n led of the distress of the respondent's son. The publications in the appellant:s' newspapers 47 Because of the injury to his reputation, his hurtfeelings, the negaUve effect on his earning capability, the aggravating factors resulting from the "sham" apology, the continuation of the defence, and the conduct of the appellants, the respondent is entitled to substantial damages. It was not appropriate to direct the jury on the obligation to pay tax, in the circumstances, but if it was a requirement this court could make an adjustment in the award. He concluded that the jury erred in not awarding exemplary damages when, on the evidence, the extremo persistence of the appellants warranted it, and this court should make such an award. The measure of damages in the tort of libel is, as a general rule, restitutio in integrum, to restore the person libelled to the position he would have been in, if the tort had not been committed, as far as money can do so. The law thereby seeks to compensate the plaintiff for the injury to the reputation he previously enjoyed, and for his hurt feelings. Such damages are said to be ·'at large". This is not a licence to juries to award astronomical sums. In Cassell & Co. Ltd. v. Broome [1972] 1 All E.R. 801, Lord Hailsham examined the principle of damages being "at large", and the inadvisability of referring to damages in personal injury awards when awarding damages in defamation cases. His Lordship said at page 824: "In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Suc:h actions involve a money award which may put the plaintiff in a purely financial sense in a much strong1ir position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel drivein underground, emerges from its lurking place at some 49 [1964] AC at 1221, when he defines the phrase as meaning all cases where 'the award is not limited to the pecuniary loss that can be specifically proved'." Damage is presumed when libel is proved but evidence of :ictual injury to the respondent's reputation or actual loss suffered is admissible. The author of McGregor on Damages, 16th Edition, in respect of the proof of damages in libel said, at paragraph 1900: "General damage does not have to be pleaded by the plaintiff. As to its proof, he starts off with a presumption of damage operating in his favour which entitles the court to award substantial damages for injury to his reputation although he has produced no proof of such injury." A party libelled may recover a general loss of trade, custi)m or earning; whereas, .a particular loss or specific contract may have to be specifically pleaded. As to such damages in general in defamation cases, M,ihoney, J.A. in Andrews v. Fairfax & Sons Ltd. [1980] 2 NSWLR 225, said at page 255: "Damages for injury to reputation as such are, in my opinion, different in nature from, and are calculated upon a different basis (andrequire different evidenc«;) from damages for the other kinds of injuries causeid by defamatory material. Damages for injury 1to reputation as such are in the nature of a solatiurn; they are not, in the ordinary sense, restitution, I would, with respect, adopt as correct the statement •Df the law made in this regard by Windeyer J in Uren v John Fairfax & Sons Pty Ltd. His Honour said: 'When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from speci,al damages strictly so called and damages for a loss of 51 In John v MGN Ltd. [1997] Q.B. 586, the Court of Appeal endorsed the practice of referring to previous awards in defamation cases. It said (per Sir Thomas Bingham, M.R.) at page 612: "We agree with the ruling in the Rantzen case th at reference may be made to awards approved or made by the Court of Appeal. ... It is true that awards in th]s category are subject to the same objection that time can be spent by the parties on pointing to similaritit�s and differences. But, if used with discretion, awards . which have been subjected to scrutiny in the Court of Appeal should be able to provide some guidance to a jury called upon to fix an award in a later case." Furthermore, the court was of the new view that awards in personal injury cases could then be looked at in making awards in defamation cas.es not for the purpose of equating such awards but: " ... as a check on the reasonableness of a proposed award of damages for defamation." I am also of the view that no rational assistance can be obtained from looking at awards in personal injury cases, as a guide to awards in defamation cases. The loss of a limb or major body functions, on the one hand, contrasted with the loss of one's reputation and hurt to dignity, on the other hand, although each would amount to a major deprivation and lessening of one'i; quality of life, will not necessarily relate to each other to attract comparable a1Nards. By the same method that the courts have developed the practice of utilizing previous comparable awards in personal injury case in making awards, tl1is court could well now develop its own measure in seeking to provide a future guide in the compensation of persons defamed causing hurt to their reputation and feelings, and the consequent distress and taint to their integrity. In order, therefore, to 53 engaged on September 19, 1987, when the libellous article was published in the Star. The respondent was, therefore, both a high level public •figure and an experienced and well-known personality in the field of tourism. The respondent said, in cross�examination, that in 19137 he earned US$146,000 and the lowest earning he had as a tourism marketing consultant was US$70,000. The evidence of the respondent's witness Marcella :Martinez, the proprietor of a company, itself a consultant in tourism market, was summarized by Smith, J. to the jury at page 90 in his summing up: "She told you that Mr. Abrahams, being successful, commanded a lot of loyalty and affection. He was dynamic in leadership and was charismatic. And remember she told you that Jamaica enjoyed successive years of record tourism growth in the early Seventies when the Plaintiff was Director; as a resulit she told you that when he ceased being Director cif Tourism, he was quickly hired by the OAS to work 8$ a high level consultant of tourism based in the Eastern Caribbean, and he revolutionized the work of Jamaica Tourist Board and took the first major step that she was aware of to increase the involvement of all categories of Jamaicans in the tourism industry. Because of the Plaintiffs long-standing contacts and friendship with leaders of the North American, Canadian private sector tourism industry, he was able to travel there, meet personally with and get them committedto help Jamaica come back." The respondent's evidence was that after the publicatioir, of the libel, " ... everywhere (he) went people were talking about (him) ... " He described how he was called a thief by a real estate man in a supermarket and also by a businessman who, in addition, had him searched and also being taunted on the 55 "But there has never been a case in England where damages have been recovered for injury to health." The learned trial judge quite properly directed the jury that there was no medical evidence available for them to consider that " ... the publication caused the stress which caused overeating, which caused obesity." The jury was directed to the evidence of Dr. Irons for the n�spondent. Dr. Irons had said that he found that the publication caused to the mspondent: (1) severely reduced self-esteem and self-perception, (2) severe anxiety with phobic response avoidance, (3) depression with hypersomnia, and (4) social withdrawal and isolation, as a consequence. The jury was then directed [at page 31 of the summation]: "Dr. Irons went on to tell you that before July 199fi, coming back to what Mr. Spaulding says, he was seeing him too for weight reduction. He told you tha:t before Mr. Abrahams came to him, he was able to detecta social withdrawal, and you remember he told you that he was invited to some Breakfast Club and he noticed that and so on. And he told you membem of the jury, that he had no way of saying the PlaintiffH health was due solely to the pu�licatic>n. So here again, you have to look; remember Mr. George's argument as to what really caused the statei of his health. If you accept it and Mr. Spaulding's, argument too, I am not going to re-ash (sic) those, members of the jury, I don't think I need to go into any more at this point, but later on if I see fit I will remind: you of any other thing that I think can assist you in dealing with the issues in the case as I go along. So that is the evidence of Dr. Irons, you must say wha1 you make of it, members of the jury." The evidence of Dr. Irons, in particular the finding that the reBpondent was suffering from "depression", refers to a specific mental illness. Thi�, should have 57 his statement would be published and that there would be no repu\blication of the libellous article in the Gleaner. Despite this, there was a publication in the Gleaner on the 18th with one omission, and a further publication with a "clarification" on the 1.9th . The learned trial judge directed the jury 1further: "Dr. Stokes, if you are satisfied that what went before was Abrahams .,speaking to. him, telling him about the talk that he had . with Miss Marie Peterson and the grounds that he ga,ve Miss Peterson to show that what was in the 'Star' couldn't be true, and Mis)s Peterson promised to amend the statement and so on, if you believe Mr. Abrahams that he told Dr. Stokes this and you conclude that Dr. Stokes knew that .the article was libellous or was reckless, whethor his action in publishing it was wrong or not, thi:,, members of the jury, may aggravate damages." This was the proper direction to give to the jury on the manner in which they should treat the subsequent publication. I see no basis to ta:ult the learned trial judge in this respect. Lack of an apology or an inadequate apology is evidence of malice which may aggravate damages. The appellants complain that the learned trial judge erred in inviting the jury to view the conduct as persistence .in thE� libel, and the jury should have viewed the apology as an honest one. The appellant, Dr. Stokes, said in evidence of the apology, published on July 10, 19195, eight years after the libel: "I did not think an apology was necessary since he had sent me a statement denying it." The apology was in these terms: 59 course, it may go to aggravate damages, make it worse. So we look at that, members of the jury, and when we come to deal with mitigation, I will tell you what to find." The learned trial judge correctly left this issue of the persistence in the libel and the apology to the jury. It was for the jury to determine whether or not the apology was full and complete, genuine and honest in the cinlumstances. It seems to me that the jury may well have thought that the mann,�r in which the "apology" was drafted was unorthodox and less than sincere but rn:oreso "tongue in-cheek", causing greater hurt. The loss of earnings on which the respondent bases his (Jlaim would be subject to tax, if he had in fact so earned it. The rule in British Transport Commission v. Gourley [1956] A.C. 185, which was specifically referable to a case of personal injuries, is that an award for loss of earnings is subject to the tax the person would have paid if he had earned it. In considering the incidence of the payment of tax on earnings, in the context of the general loss ctf earnings in a claim of libel, Lord Reid in Lewis v. Daily Telegraph Ltd. [1964) A.C. 234 said at page 262: "There can be no difference in principle between loss of income caused by negligence and loss of income caused by a libel. But damages for libel have to be assessed by a jury, and juries are not expected to make mathematical calculations, so they can only deal with this matter on broad lines. I think that a jury ought to be directed to the effect that if they think that the plaintiff company has proved that it has suffered or will suffer loss of profit as a result of the libel they must bear in mind that the company would have had to pay income tax at the standard rate out of that 61 of civil law. Our courts have acknowledged the power of juries to award exemplary damages. In the instant case, the learned trial judge .left to the jury the fact that they could award exemplary damages, but only where they were of the view that the award for compensatory damages was insufficient. He said: [see page 135 of the summation] "So, members of the jury, if having come to a figure for your compensatory damages, inclusive of aggravated damages if you think that this is sufficient, then you need not award, or go to consider exemplary damages. If you think that is sufficient, when you look at the compensatory, inclusive of aggravatory damages, if .You think it is sufficient then I don't have to go to exemplary damages." In the light of such a direction, which in my view correctly stated the law, I .see no basis to find that the decision of the jury not to award exemplary damages was unreasonable. In John v. MGN (supra) the court cautioned, atpafJe 619: "It is plain on the authorities that it is only where thie conditions for awarding an exemplary award arie satisfied, and only when the sum awarded to th1� plaintiff as compensatory damages is not itse If sufficient. to. punish the defendant, show that· tort doe:s not pay and deter others from acting summarily, that an award of exemplary damages should be added tt:) the award of compensatory damages." A man's reputation is a valuable asset. It is all that some m•�n possess, or wish to possess to take them successfully and contentedly thrOU!Jh life. Some men, on the other hand, spend their early life accumulating wealth by questionable and dubious means and then desperately grope around seeking to "buy back" with such wealth their "lost integrity" and good name, in vain. A man's integrity, once tainted, is almost invariably lost forever. Tht3 freedom of 63 In respect of the quantum of awards, juries may now be referred to previous awards in libel cases, as is done in personal injury ca.ses [John v. MGN, (supra)]. I respectfully embrace this view. However, there are no awards of this court in libel actions, in recent times, to which we could refer for guidance in considering the level of this award. The rationale that one may look at personal injury awards, not for assistance as to a comparable quantum, but as an indication of a ceiling, seems to be a paradox and, is in practical terms, unhelpful. As I indicated previously, both may not necessctrily correlate. Furthermore, although medical prognosis can determine, with reasonable certainty, the long-term psychological and physical effect of a personal injury, I greatly doubt that a sum of money can comfortably erase the stigma and recurring hurtattaching to a person, wrongly and unjustifiably libellod. In view of the misdirections that arose, and in all the circumstances of this case, I find that the award of the jury, being excessive, an award of $35M is appropriate, witti costs to the appellant, to be agreed ortaxed. 64 LANGRIN, J.A.: This is an appeal against an assessment of damages by �;mith J, and a jury between May 6, 1996 to July 17, 1996 in which the jury found that the plaintiffis entitled to General Damages in the sum of $80,700.000. Mr. Anthony Abrahams at the relevant period was a Tourism and Marketing Consultant, a member of the House of Representatives in the Parliament of Jamaica, a Company Director and during th•� period from November 1980 to August 1984 held the post of Minister of Tourism in the Government of Jamaica. After graduating from Jamaica College he attended the University of the West Indies where he was vice president of the student body and chairman of the Student Union. He became a school te,acher and was awarded the Rhodes Scholarship to Oxford University in Engli,md. There he became president of the Oxford Union. On leaving Oxford University he worked with the BBC as a television reporterand his assignments took hirn to Africa, the Caribbean and other parts of the world. On his return to Jamaica he took up an assignment with the Jamaica Tourist Board and three years later he became the Director of Tourism. He left the job as Director and openeKJ his tourism consultancy with contracts from the Organisation of Ammican States, Government of El Salvador and Eastern Airlines Ltd. The Gleaner Company Ltd. is the proprietor, printer and publisher of the "Daily Gleaner" and "Star" newspapers, then the only daily newspapers in 65 Jamaica, both of which have wide circulation throughout Jamaica and both enjoy circulation in the Caribbean, NorthAmerica and the United Kingdom. The action was filed on 24th September, 1987 in relation to articles published in the Star Newspaper of 17th September, 1987 and the Gleaner of 18th and 19th September, 1987. An appearance was entered on 2nd October, 1987but no defence was filed. The failure to file a defence within the required time caused the respondent Abrahams to enter judgment in default on 23rd October, 1987. As a sequel to this the appellants brough·: interlocutory proceedings to set aside the default judgment but on the 14th Deicember, 1988 Edwards J. refused the application. This Court on 11 th Decerrber, 1991 set aside the Order of Edwards J. and gave the appellants leave to file a defence. The respondent Abrahams then sought leave to appeal to Her Majesty in Council to restore the default judgment but the application was refused on the 18th February, 1992. The appellants by then had filed their defence and the respondent Abrahams sought "further and betterparticulars" with respect to the issues of justification and qualified privilege . The summons for further and better particulars was dismis�ed on 13th October, 1992 and from this order the appellants appealed. This court comprising (Wright, Downer, Patterson (Ag.) JJA on January 24, 1994 allowed the appeal and ordered the defenc1� to be struck out and the case remitted to the Court below to be proceeded with on the basis that there was no defence. 67 KEY FIGURE Moore said Monday that his files helped lead Federal agents to suspect that Anthony Abrahams, Jamaica's former Tourism Minister was being paid by American businessmen for the multi-million-dollar tourism contracts. Sources close to a federal grand jury have :;aid Abrahams is a key figure in the investigation, the newspaper said. Abrahams, however, has not testified before the grand jury empanelled in New Haven, the Advocate reported. The newspcIper said effortsto reach Abrahams and his succes$or, Hugh Hart, during the past two weeks V1rere unsuccessful, and Hart didn't return telephame calls to his officeon Monday. Moore, 61, said the notes in his diary are impressions of what was going on betw�en Abrahams and the United States companies. The subjects also appeared in letters between him and friends in Jamaica. 'I have no definitive proof that this ever happened - it was just a suspicion of mine', Moore said. 'People were talking. There were certain things everybody know. There was no secret about the situation with the (former) Minister of Tourism'. Moore said IRS agents seized his diary and o·�er documents in June, 1983, when he was boing investigated for his part in phony literary tax shelters. Moore is now awaiting sentencing on his 1986 conviction of evading taxes. Moore, who has lived in Jamaica periodically for the past 27 years, said that in 1981, he volunteered his services to the Jamaican government to find advertising and public relations companies that would help the country's tourist trade. 'I was sort of a self-appointed liaison althOU!Jh I asked to help. I said, 'Let's try to do something about the image here, which is very bad at the 69 The Gleaner did not deny the publication of these articles. There was no prior apology. It denied any defamatory meanings and plftaded qualified privilege and justification. Great reliance was placed on the affidavit evidence of John Gentles which is conveniently summarised ,in the record at page .23 as follows: "I served as Director of Tourism in Jamaica from about December, 1980 until February, 1983. In about the month of April 1981 I was also appointed Chairman of the Jamaica Tourist Board. I have read the words set out in paragraphs 3,4 and 5 ofthe Statement of Claim herein. The words set out in each of those paragraphs are true in substance and in fact. New York .busimess executives in fact paid kickbacks to .Jamaican officials for lucrative tourism promotion contracts. Included among .these payments were cheques either made payable to the Plaintiff or negotiated to the Plaintiff and received by the Plaintiff and further negotiated by him. It is true that the United States of Ame1ica federal authorities in Connecticut are investigating pubiic relations and advertising•executives suspected of making payments to Jamaican Government officials for .the award of contracts by Jamaican Government agencies to the firms of those executives. The matters involved are currently being investigated by a Federal Grand Jury in Connecticut aforesaid and I have given evidence before the said Grand Jury. I was asked to identify a number of documents and the signatures therein and those included public relations and advertising contracts and cheques either drawn by or made payable to the plaintiff or negotiated to the plaintiff and on which �he plaintiff's signature appeared. I identified the plaintiff's signature on those cheques". 71 Gentles said on oath. There was obviously no clearing of the plaintiff's name by the apology. The following passage in the judgment of Nourse L.J i 'I Sutcliffe v Pressdram Ltd. [1991] 1 Q.B 153, 184; is apposite: "The conduct of a defendant which may often be regarded as aggravating the injury to the plaintilf's feelings, so as to support a claim for aggravated damages, includes a failure to make any or any sufficient apology and withdrawal ... " THE TRIAL At the trial before the jury, the counsel for the plaintiff i-eferred to the interlocutory judgments of the Court of Appeal and in particular criticised counsel for the defendants on the basis that justification should not have been pleaded unless the "defendants had clear and sufficient evidence of the truth of the imputation". However, in the case of McDonald's Corp. and Aitother v Steel & Ors [1995] 3 All E.R. 615 the English Court of Appeal held that a plea of justification was not required to be supported by clear and sufficient evidence before being properly placed on the record since such a test would impose an unfair burden on a defendant. Nevertheless, a defendant wa.:s warned that before pleading he should have reasonable evidence to supp,:,rt the plea or reasonable grounds to suppose that sufficient evidence to prove· the allegation would be available at the trial. When one considers that this plec1 of justification came after the Prosecutor and Court in the United States of America had dismissed charges against Abrahams, then there could be no ba:iis of obtaining 73 He told you that he never felt so .badly before. Clo:;;est he told you he had ever come to having heart attack. You remember he gave you too, some other occasions. He said stoplight or stop signs, bad place for him, people would be jeering and taunting him. Well, let me continue about this businessman, he said the businessman sent his security guard to search him. He went on to tell you that people were avoiding him and it was then he told you about the stress caused the asthma to return. Remember I told you about ·that already. Jobs that he was negotiating did not materialize. So he was negotiating jobs and they did not materialize. Remember we looked at the gen1:iral loss of business. His resources were run down ana so financial problems set in. He said he was not exaGtly starving because of the generosity of his fiancee. That is in terms of basic necessities, he told you, and he said his divorced wife took care of the children, but he told you that that was really humiliating to him. He continued by saying there was a general impact on his marketing career and he said he asked himself vi1ho wants a thief. He told us that part of the duty as tourism consultant was to advise clients how much of the tourism budget to spend on advertising, and he asked, would somecme seek such advice from a person who has a habit of taking kickbacks? You see, this he said, was the real dilemma that he faced in his career, nobody wanted him,. he was .avoided .by people who he -thought w1:ffe good friends. Invitation to parties and functions c1nd weddings, et cetera, dried up, stopped. He l'elt ostracized ... I mentioned about the Taste of Jamaica affairs, tl'lat includes a particular person, and based on that Mr. Gentles was dismissed. Gentles was immediately hired by the General Manager of 'the Gleaner' at the time. Let me just mention this, he says, referring back, I should say, to this businessman, he said it was the closest he had ever come- I mentioned that alreadv, I am sure I did. Gas station incident, the heart attack incident, I am quite sure I did. He said even some people refused to accept telephone calls from him and he told you about job opportunities in 75 done in court before the indictment was lifted and l1e mentioned that in spite of all this, 'The Gleaner' was still persisting in the charge that he was guilty, and you remember he .complained about articles, members of the jury, the decision of the Court of Appeal which had - I think it is Exhibit 17, you remember members of t·,e jury, this was a report in the 'Gleaner' of the Court of Appears judgment, and this was December 24, 19H1, which he referred to, and it is said the effect of this was that 'The Gleaner' was telling all its readers that the appeal was saying that they had entered a plea of justification and it was true thatthe publication was true. So you can look at it, because this is really the judgment of the court, but looking at this case you see that this is purely editorial, it is true and the effect was to let everybody know what the 'Gleaner' was saying and so on. Remember he said - well I mentioned the apolo,�y. what his views .were on that and I won't go back to t�,at, members of the jury. He told you by the end of 1991 he had given up getting a job. He was not going out, socializing and he told you that what clothes he had could not fit him. And he mentioned this and the effect on him. He had gone to a party, the judgment, I think, the Court of Appeal had already given the judgment, but it was. not published in 'The _Gleaner\_ bLIJ p_e9pl_� Y!�r�__t�J�_ing about it and then after this Christmas party now, this -came-ouf (�nd everybody was talking about it. And here again, he said he nearly gave up and deep despair set in. He told you that he had witnessed, or he was in the Court of Appeal when there was the appeal by his attom:?ys for Further and Better Particulars and he mentioned what Mr. George said and the effectit had on him, and I don't need to go through that. He said that Mr. George stood up and said in court that reason why we were objecting was because I did not want the Grand ,.lury evidence to be opened up, because I was afraid of what would come out of the Grand Jury evidence and I had to sit there and hear it. .. " 77 them. There was no malice towards Abrahams. A significant aspect of his evidence at the trial is when he said "up until now he regarded Mr. Abrahams as being guilty, just that they cannot get the evidence". An analysis of the facts clearly shows that the Gleaner had not been prepared to check the facts as to the allegation of the kick-bac:ks which was removed after the Grand Jury hearing. There was therefore no foundation for linking the plaintiff with the fraud. The threat of proceedings by the plaintiff had no inhibitin;J effect on the Gleaner's decision to proceed with its own view of the guilt of the plaintiff of the fraud. Mr. Abrahams was portrayed as one who was involved with fraud. The Gleaner pleaded justification. Having regard to these outrageous features this case was in a "class by itself'. Against this background the jury may well have ac,::epted that a substantial award was necessary, not to inhibit responsible, investigative journaiism but to have an enorrnblJSinipacf oh what they may weHhave thought to be a baseless way of defending an indefensible position. SUMMING UP AND VERDICT The main issues in the judge's summation to the jury are (a) Compensatory damages, (b) Aggravated Damages, (c) Exempl.ary Damages. The issue of Compensatory and Exemplary Damages were considered separately by the judge. He directed them that should they come to a figure for compensatory damages inclusive of aggravated damages which they considered 79 (3) That the award of General Damages by the jury repre�ients a wrong measure of damages and is so ma11ifestly unreasonable and excessive, and cannot represent a true measure of any damage the Plaintiff/Respondent ma�, have sustained as a consequence of the Defendants/Appellants action. (4) That the award of the jury contravenes Section 22 of the Jamaica Constitution which guarantees to the Defendant/Appellants the right to freedom of expression and the right to hold opinions and to receive and impart ideas without interference. (5) The Learned Trial judge erred in failing .to direct the jury that they should take into account awards in personal injury cases in this jurisdiction". Tnefe were s(ipplemenfary". grounds of appear --•-·ihfoh. may- be . summarised as follows: Evidence was to be put before the jury which had not been pleaded and which could only have been put to the jury if specifically pleaded and particularized; the judge should not have permittc�d evidence to be put to the juryof the effect of the libel complained of on the physical health of the plaintiff's son, in that such alleged damage was too rer1ote; failure to point out to jury that there was no evidence to connect any loss of income, arising from his tourism consultancy to the publication of the libel: failure to give jury warning about subsequent statements which may lead to aggravated 81 (a) with the consent of all partiE!S concerned, substitute for the sum awarded by the jury such sum as appears to the Court to be proper; (b) with the consent of the party entitled to receive or liable to pay the damages, as the case may be, reduce or increase the sum awarded by the jury by such amount as appears to the Court to be proper in respect of any distinct head of damages .erroneously included in or excluded from the sum s,J awarded; but except as aforesaid the Court shall not have power to reduce or increase the damages awarded by a jury". Both appellants and respondent have given consent to this Court to exercise the power under the rule to substitute its own award in lieu of ordering a new trial of the assessment of damages without prejudice to any further appeal to the Privy Council. . DAMAGES- PR!NC!PLES OFLA\AJ :N DEFAMATION CompensatoryDamages The aim of an award of damages in tort is to put the claimant in the position which he would have been in had the wrong not been committed. The damages are at large. In Gatley on Libel and Slander 8th Edition at paragraph 1453 the learned author said that "Damages for defamation are intended to be compensation for the injury to reputation and for the natural injury to feelings, and the grief and distress caused by the publication". 83 his income by his fiancee, his father and amicable arrangements with his former wife concerning the children. However, the judge correctly encouraged the jury to be reasonable in making the award for compensatory damages. On the subject of general damages, I have examined the defamatory statement, the extent and circumstances of its publication and its effect on Anthony Abrahams. On any view the false statements amounted to allegations of fraud calculated to cause in the minds of those who read them that they were credible. Accordingly, a substantial award of general damages by thejury would be justified to compensate Mr. Abrahams for damage to his reputation and injury to his feelings. AGGRAVATED, DAMAGES In relation to Aggravated damages the factors to be taken into account in assessing damages are clearly set out in Gatley on Libel anct Slander 8th Edition. At pages 593 -94 where this appears : " -··-----· .. -� --· "1452 Aggravated damages: The conduct of th,3 defendant, his conduct of the case and his state of mind are thus all matters which the plaintiff may rely on as aggravating damages. Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. In awarding 'aggravated damages' the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a 85 Mr. Emil George Q.C. submitted that judges should be required to address juries on the conventional compensatory scales of damages awarded in personal injury actions not as a precise correlation but as a check on the reasonableness of their proposed award. It was further submitted that indications by counsel, and the judge as to the sum or award appropriate to the particular case should be given so as to avoid excessive awards. Reference was made to John v MGN Ltd. [1997] QB 586 and Mccarey v Associated Newspaper Ltd. (No. 2 [1965] 2 QB 86 at 109. It is of significance that apart from the previously cited cases the courts in England have rejected the comparison of libel and personal injur1 cases. In this regard reference mustbe made to Cassell& Co v Broome [1972] 1 All ER 801 (HL) at p.824, 8/ackshaw v Lord [1983] 2 All ER 311 (C.A) at pp. 337, 340; Suttcliffe v Pressdrum Ltd [1990] 1 All ER 269 (C.A) at pp. 2B1-82, 289; and Rantzenv MirrorGroup Newspapers [1986) Ltd. [1994] Q.B. 670. In the latter case it was, sg1jg tba.Uber� is no satisfactQ!Yway in which cQl")v_�ntior,a.l c:1wc3rgs in personal injury actions could be used to provide guidance for an award in a libel action. Personal injuries would not be relied on as any exact ;iuide but juries might properly be asked to consider whether the injury to reputat on of which the plaintiff complained should fairly justify any greater compensation than conventional awards for loss of a limb or of sight or forquadriple1gia. The Court said it was rightly offensive to public opinion that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a Bignificant factor than if that same plaintiffhad been rendered a quadriplegia. 87 compensation; the word is compensation, and to re establish his reputation, vindicate his good name and take account of the distress, the hurt and the humiliation which the defamatory publication with which you are here concerned have caused. You must decide whether it caused these things, and if you so decide, you take it into account. You take into account too, that the Plaintiff was a public figure, a man with an international reputation in the field of tourism, if you accept that. Probably every reader of the newspap1�rs knew to whom the article referred". EXEMPLARY DAMAGES There was consent between the parties to argue this ground. Mr. Spauldings Q.C. in a respondent's notice in relation to exemplary damages submitted that the conduct of the appellant in this case is so extreme as to warrant significant exemplary damages. He argued that the malice was extreme and the evident intention was not only to harm the respondent but also to be sensational, to stir up public interest, and to profit thereby fmm the sale of the newspapers. Smith, J in his definition of exemplary damages directed the jury thus: "Exemplary damages can only be awarded if tl1e plaintiffproves that the defendant when they made tile publication knew that they were committing a tort , that is a civil wrong, or were reckless whether their acti:m was tortious or not and decided to publish because tr1e prospects of material advantage outweighed t•1e prospect of material loss!I. Exemplary damages are available where the defendant's conduct has been high-handed to an extent calling for punishment beyond that inflicted by an award of compensatory damages including aggravated damage�L 89 Pecuniary Loss The evidence disclosed that the plaintiff's business had dr ,ed up in 1987 after the publication of the libel two years before the indictment was preferred in the USA. Within months Young and Rubicam stated they had not in fact bribed the plaintiff and there was no evidence that the plaintiff receiveid any "kick back". The harm to the plaintiff commenced in 1987 and continued for two years before the indictment was preferred in 1989. The indictment was withdrawn in 1990 within a year of its being preferred. The learned author of McGregor on Damages, 16th Edition, paragraph 1900 at page 1230 states: "General damages does not have to be pleaded by the plaintiff. As to its proof he starts off with presumption of damage operating in his favour which entitles the Court to award substantial damages for injury to l1is reputation although he has produced no proof of such injury. However, there will usually be evidence given in support of the plaintiff's claim's for general damages, since a piaintiff offering no evidence of damage at all may find himself awarded small or nominal dama�ies only. As to what evidence is admissible in proof of general damage, this should normally consist of evidence of general losses, such as the general falling off of the plaintiff's custom or the general decline in the circulation of the plaintiffs'newspaper". Evidence of particular transactions lost or particular custom13rs lost cannot be given with a view to showing specific loss as part of the general damage. However, it may be possible to give evidence of specific losses, even where these have occurred after the issue of the writ in the action, not with a view to 91 The Learned Trial Judge was unduly generous to the defendant when he advised the jurors that they could not take into account the injury t,:> the plaintiff's feelings due to the noticeable effect of the libel on his children. The judge correctly told the jury that there was no medical Hvidence to link the asthma , obesity and diabetes to the libel and he gave adequate directions to the jury in relation to the injury to the plaintiff's feelings. INCOME TAX Learned Counsel for the appellant submitted that the trial judge failed to direct the jury that they ought to make allowances for the obligation to pay income tax out of the income had it been earned. The trial judge went out of his way to caution the jury that this was not a case in which special damages had been claimed. It is trite law that in cases in which there is an award of damages based on a quantifiable basis there can be a specific figure to apply such tax considerations. In the instant case there is no specific award for 10:;s of income. Consequently there is no identifiable sum in the award which could attract tax considerations. It even becomes more difficult when one conside1·s the variable features of this case including damages for loss of reputation, iniury. to feelings damage to income earning potential and other aggravating factors involved in this case. In such circumstances the more prudent course in my viBw in order to avoid any risk of injustice would be for the plaintiffto receive the full sum, leaving 93 "22. - (1) Except with his own consent, no pernon shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the �;aid freedom includes the freedom to hold opinions and to receive and impart ideas and information with out interference, and freedom from interference with his correspondence and other means of communication. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent \iVith or in contravention of this section to the extent that the law in question makes provision - (a) which is reasonably required - (i) in the interests of defence, public safoty, public order, public morality or pul:ilic health; or (ii) for the purposes of protecting the reputations, rights and freedoms of otl:1er persons, or the private lives of persons concerned in legal proceedini�s. preventing the disclosure of information received in confidence, maintaining ·:he authority and independence of the cou1·ts, or regulating telephony, telegraphy, posts, wireless broadcasting, television or other means of communication, putilic hi" ,1, ..1, • . ., ex h'h·+·:..,1..ion orpuu,1c ente, lamment; or (b) which imposes restrictions upon public office rs, police officers or upon members of a defence force ".(emphasis supplied). Article 10 of the European Convention of Human Right is similar to Section 22 of the Constitution of Jamaica in so far as they both protect the reputable rights and freedoms of other persons This article is set out hereunder: "10.2 - The exercise of these freedoms since it carries with it duties and responsibility, may be subject to Buch formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial 97 enjoyment of the general fundamental rights and freedoms of the individual must be subject to the rights and freedoms of others and also for the public intereat �@e oeotion 1 J of the Conetitutien; In my judgment this Court applying the objective standards of proportionality and reasonable compensation or what is "reasonably required' should reduce the award of $80.7M to $40M. In my view this award will ensure that justice is done to both sides and the 'public inter0st' under the Constitution will be secured. Accordingly, the appeal should be allowed in part with the award to the respondent reduced to $35M. The appellant should pay half the cost of the appeal to be taxed if not agreed. ORDER: FORTE, P: The appeal is aliowed in part Order of the Court b1:1iow varied to �!Jb�tit!Jte for a &.I.Im of $SQM aw�rded a !iii.Imf o $J5M. Half costs to the appellants to be taxed if not agreed.